Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06WF1340, John Conley, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury convicted Geraldo Segura of one count of unlawful driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) and one count of evading police while driving recklessly in violation of Vehicle Code section 2800.2. Segura admitted a prior felony conviction. The trial court imposed the midterm sentence on count 1 and one-third the midterm sentence on count 2, to run consecutively, for a total of three years eight months in prison.
Segura challenges the conviction on one ground: He argues the trial court erred by failing to instruct the jury sua sponte on joyriding in violation of Penal Code former section 499b as a lesser included offense of violating Vehicle Code section 10851, subdivision (a). We conclude joyriding in an automobile cannot be a lesser included offense because amendments enacted in 1996 to section 499b removed joyriding in an automobile from the section’s reach. Even if joyriding in an automobile remains a lesser included offense, the evidence at trial did not support giving an instruction on that offense. We therefore affirm.
Facts
On May 17, 2006, around 1:00 p.m., Isiah Cummings parked his customized 2004 Cadillac Escalade at the South Coast Plaza parking lot and went inside to shop. When he returned about an hour later, his car was gone. Cummings had not given anyone permission to drive his car. He still had the car keys. His wife had another set of keys, but she was in Northern California. Cummings reported the car as stolen.
A friend of Cummings arrived about two to three hours later to give him a lift. The friend shopped for a while, then drove with Cummings north on the 405 freeway. As they were driving, Cummings spotted his car. He dialed 911 as the friend followed the Escalade. Cummings noticed the man in his car was driving calmly and talking on a cell phone.
California Highway Patrol Officer Brian Joy received a radio dispatch reporting that a person was following his own stolen vehicle northbound on the 405 freeway. After hearing the dispatch, Joy situated his patrol car on a freeway overpass, from which he watched Cummings’s Escalade transition from the 405 freeway to the northbound 605 freeway. Joy drove his patrol car onto the 605 freeway, merging directly behind Cummings’s Escalade. He relayed the license plate number to the dispatch center, which confirmed the Escalade had been reported stolen.
Joy followed the Escalade, but for safety reasons did not activate the patrol car’s lights or siren until a second patrol car arrived to assist in the pursuit. Joy noticed the driver of the Escalade turned and looked toward Joy several times.
Several minutes later, the second patrol car pulled up behind Joy. Both patrol cars then activated their lights and sirens. Once the lights and sirens were activated, the Escalade sped off. The Escalade accelerated from 65 miles per hour to about 95 miles per hour and wove in and out of traffic in an attempt to evade the pursuing officers. The Escalade made at least five unsafe lane changes, causing other cars to brake suddenly, change lanes, or swerve to get out of the way.
The Escalade accelerated to speeds in excess of 115 miles per hour before transitioning from the northbound 605 freeway to the westbound 105 freeway. On the two-lane transition ramp, the Escalade drove onto the shoulder to avoid cars, accelerating to yet higher rates of speed. Passing more than 60 cars, the Escalade traveled at speeds of 120 to 125 miles per hour on the westbound 105 freeway. The patrol cars continued their pursuit with lights and sirens activated, matching the Escalade’s speed.
The Escalade exited the freeway at Bellflower Boulevard and braked hard as it approached a red light at an intersection. Unable to stop in time, the Escalade ran the intersection, causing several cars to come screeching to a halt. Once through the intersection, the Escalade stopped. Segura, the driver and only occupant, got out, threw his hat and a watch to the ground, and ran. The officers trapped Segura, wrestled him to the ground, conducted a felony traffic stop, and handcuffed him.
Joy inspected the Escalade and noticed its locks had been broken with a large blunt object, such as a screwdriver, and the ignition had been torn out. A key to a Honda vehicle and a “shaved” key were later found near Segura’s hat, and a screwdriver was found on the floor of the Escalade. Joy was able to start the Escalade with those keys and the screwdriver. The damage to the Escalade’s ignition appeared to have been inflicted by the screwdriver.
Missing from the glove box were several items, including a watch, a small television set, Cummings’s checks, credit cards, and driver’s license. The officers found Cummings’s watch on the ground where they had wrestled Segura.
Analysis
Segura was convicted under Vehicle Code section 10851, subdivision (a), which provides in relevant part, “[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle . . . is guilty of a public offense.”
In People v. Moon (2005) 37 Cal.4th 1, 26-27 (Moon), the court held that violating Penal Code former section 499b was not a lesser included offense of violating Vehicle Code section 10851, subdivision (a) under the elements test, but might be a lesser included offense under the accusatory pleading test. The crime charged in Moon was committed before Penal Code section 499b was amended in 1996. Penal Code former section 499b, the relevant statute in Moon, provided in relevant part: “Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor.” (Pen. Code, former § 499b, as amended by Stats. 1983, ch. 1092, § 289, p. 4045; see Moon, supra, 37 Cal.4th at p. 26.) The court held that joyriding was a lesser included offense under the accusatory pleading test because the complaint charged the defendant with both driving and taking the victim’s car. (Moon, supra, 37 Cal.4th at p. 26.)
The complaint in this case also charged Segura with driving and taking Cummings’s vehicle. However, in 1996, the Legislature amended Penal Code section 499b to delete the phrase “automobile, bicycle, motorcycle, or other vehicle” and replace it with the word “bicycle.” (Stats. 1996, ch. 660, § 1; see People v. Howard (1997) 57 Cal.App.4th 323, 326, fn. 2.) Since the 1996 amendments removed automobiles from the reach of Penal Code section 499b, it no longer creates a lesser included offense of violating Vehicle Code section 10851, subdivision (a) under any test.
When enacting the 1996 amendments to Penal Code section 499b, the Legislature declared: “‘The legislative intent behind the amendments to Section 499b of the Penal Code . . . is to clarify and streamline existing law by deleting provisions in Section 499b of the Penal Code that are generally duplicative of provisions in subdivision (a) of Section 10851 of the Vehicle Code. These amendments to Section 499b of the Penal Code shall not be construed as evidencing a legislative intent to eliminate a crime.’” (Historical and Statutory Notes, 48A West’s Ann. Pen. Code (1999 ed.) foll. § 499b, p. 601; see Moon, supra, 37 Cal.4th at p. 26, fn. 3.) Based on this expression of legislative intent, Segura argues, “misdemeanor joyriding should still be a lesser included offense of felony vehicle driving or taking where the accusatory pleading test is met.” However, by stating its 1996 amendments did not intend to eliminate a crime, the Legislature was suggesting that joyriding in an automobile already fell within Vehicle Code section 10851. We do not read the Legislature’s statement of intent to mean joyriding in an automobile remains an offense separate from Vehicle Code section 10851, subdivision (a).
A criminal complaint cannot plead, and a defendant cannot be convicted of, a crime that does not exist. After the 1996 amendments, Penal Code section 499b did not extend to joyriding in an automobile. Thus, Segura could not have been convicted of violating Penal Code section 499b regardless of what the complaint alleged.
Even if joyriding remained a lesser included offense under the accusatory pleading test after the 1996 amendments to Penal Code section 499b, the trial court in this case had no sua sponte duty to instruct on joyriding. A trial court must instruct on a lesser included offense only when “the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.)
In People v. Barrick (1982) 33 Cal.3d 115, 134, the court explained the distinction between violating Vehicle Code section 10851, subdivision (a), and joyriding under Penal Code former section 499b: “The principal difference between them is that section 10851 requires a driving or taking with the specific intent to deprive the owner permanently or temporarily of title or possession of the automobile [citation]. Penal Code [former] section 499b, the joyriding statute, does not require a specific intent to deprive the owner of title or possession of a vehicle [citations]. However, the [former] section does require a ‘purpose’ or ‘intent’ of ‘temporarily using or operating the same.’ [Citation.]” (Fns. omitted.)
The evidence that Segura intended to permanently deprive Cummings of his vehicle was overwhelming. Segura broke into the Escalade, tore out the ignition, and started the vehicle with the shaved key, the Honda key, and a screwdriver. He removed Cummings’s possessions, including driver’s license and credit cards, from the glove box. He drove the Escalade far away from the crime scene, and attempted to escape police pursuit by driving at speeds often in excess of 100 miles per hour along busy freeways, making illegal lane changes, and running a red light. When forced to stop, Segura tried to run from the police on foot. The police had to wrestle Segura to the ground to apprehend him. No reasonable jury could have concluded Segura intended only to temporarily use or operate the Escalade.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.